On April 25, 2018 the Ministry of Information and Broadcasting released a bid document (“SMCH Bid Document”) stating its intent to establish a Social Media Communication Hub (“SMCH”) which would enable processes such as analyzing large volumes of data across diverse digital platforms in real time, comprehensive analytics along with monitoring and analyzing social media communications etc.
The proposal was challenged in the Supreme Court by Trinamool Congress MP, Mahua Moitra and was subsequently withdrawn by the Government, as informed by the Attorney General, Mr. K.K Venugopal on August 3, 2018.
There were multiple points of concern regarding this SMCH Bid Document, some of which have been addressed hereunder :
1. Establishment of a Surveillance State
The SMCH Bid Document goes on to define how a “technology platform is needed to collect Digital media chatter from all core Social Media Platforms as well as digital platforms” and should further support “creation of a 360 degree view of the people who are creating buzz across various topics.” The technology is required to have the capability to “listen” for and collect data not only from social media platforms but also from email. The ability to “Monitor individual social media user/ account” is a specific mandate being given to the service provider. Based on this, the software should be able to “identify influencers” and “see historic conversation of each user in a reverse chronological manner along with the ability to merge conversations across channels.” This clearly is a step in the making of a surveillance state, where every activity of every citizen on any social media platform will be monitored, analyzed, studied and reported. Justice D.Y. Chandrachud, while hearing a Public Interest Litigation moved by the Trinamool Congress (TMC) legislator Mahua Moitra seeking a stay on the establishment of the Hub commented that, “If the government starts tapping WhatsApp messages, we will be moving towards becoming a surveillance state.”[fn]https://www.livemint.com/Politics/Dg8XuocPJe7fYWPn8kSo9N/SC-likens-govt-social-media-hub-to-surveillance-state.html [/fn]
Intrusion to privacy can be in any form, including through devices or technological aids. Every individual is entitled to be in a state of repose and to work without being disturbed, or otherwise observed or spied upon. Surveillance by the state cannot be such as to squeeze the fundamental freedoms guaranteed to all citizens or to obstruct the free exercise and enjoyment of those freedoms; nor can it be so as to intrude or offend the dignity of an individual.[fn] Malak Singh v. State of Punjab and Haryana (1981) 1 S.C.C. 420[/fn] What is fearsome is the present technological age which has the capacity of making surveillance even more convenient. That is why, in the recent Privacy judgement, the Supreme Court observed that surveillance is not new, but technology has permitted it in ways that are unimaginable. [fn] Justice K.S. Puttaswamy(Retd) v. Union Of India, (2017) 10 S.C.C. 1[/fn]
2. Legality of the SMCH
Hon’ble Justice Chandrachud in the Privacy judgement laid down a threefold requirement for
any law to put a restriction on the privacy of an individual; these requirements were as follows:
There must be a law in existence to justify an encroachment on privacy;
The requirement of a need, in terms of a legitimate state aim, ensured that the nature and content of the law which imposed the restriction fell within the zone of reasonableness mandated by Article 14; and
The means which were adopted by the legislature were proportional to the object and needs sought to be fulfilled by the law.
In the backdrop of these threefold requirements, the SMCH fails on all fronts; (1) The SMCH is not created by any legislative authority, in fact, the Social Media Communication Hub will be housed under the New Media Cell which has itself not been created by any statutory enactment but by a notification dated December 19, 2013 bearing No. A-50013/167/2013-Admn.IV which merely notes that it is to, “disseminate the information through newly emergent social media and concurrent media”. Hence, the Social Media Communication Hub is an extralegal body being created without statutory backing; (2) the SMCH is not, by any stretch of imagination, a reasonable action and there is a very fair chance of it being used it an arbitrary manner ignoring any moral or legitimate state aims; (3) this action of mass surveillance and strike on an individual’s right of privacy under the garb of a SMCH is by no means proportional to the government’s “a Social Media Hub to facilitate information flow regarding its policies and programmes through social media platforms i.e. Facebook, Twitter, Instagram, YouTube etc.” stance.
The SMCH Bid Document[fn] Request for Proposal bearing RFP Ref No: BECIL/Social Media/MIB/02/2018-19 dated 24.04.2018[/fn] explained that it is looking for a tool that would have the capacity to provide inputs to the Ministry of Information and Broadcasting.[fn] Page 28, Request for Proposal bearing RFP Ref No: BECIL/Social Media/MIB/02/2018-19 dated 24.04.2018.[/fn] This tool was required to do a predictive analysis and find out how public perception could be moulded in a positive manner for the country and how nationalistic feelings could be inculcated in the masses.[/fn] Page 34, Request for Proposal bearing RFP Ref No: BECIL/Social Media/MIB/02/2018-19 dated 24.04.2018.[/fn] These practices of the State, amongst others, would essentially lead to indirect censorship.
The pith of the SMCH seems to be one, to benefit and promote the welfare of the citizens by gauging public opinion on a specific scheme, making people aware of their rights and promoting India on a countrywide level. This objective would be impossible to achieve when citizens know and feel that their true thought could have direct or indirect consequences against them. The Supreme Court has explained that privacy has both positive and negative content. While the negative content restrains the State from committing an intrusion upon the life and personal liberty of a citizen, its positive content imposes an obligation on the State to take all necessary measures to protect the privacy of the individual.[fn]Justice K.S. Puttaswamy(Retd) v. Union Of India, (2017) 10 S.C.C. 1[/fn]
It is further pertinent to note that Article 19(2) of the Constitution lays down certain grounds under which censorship is permissible, viz., sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. However, the SMCH does not fall under any of these heads of reasonable restrictions, and thus it would be an illegal/invalid censorship.
In an India where people know that they are being profiled based on the influence they carry and the thoughts they put out in their public or private social space, where people are afraid to voice their real opinions fearing that if their opinion is anything but the “correct” one, they will face direct and indirect penalties by a government elected by themselves; whether intended or not, censorship and chilling effect is but an obvious consequence of such a SMCH.
4. Limited Government
Once the Constitution is regarded as the supreme law and the powers of all the other organs of government are considered as limited by its provisions, it follows that not only the legislature, but also the executive, and all administrative authorities, are equally limited by its provisions, so that any executive or administrative act which contravenes the provisions of the Constitution must, similarly, be void and the Courts must invalidate them.[fn]D. D. Basu. “Commentaries on The Constitution of India”, p. 165, Vol. I. 1955.[/fn] Notably, even the Supreme Court has expressly stated that the principle of limited government is a part of the basic structure of the Constitution.[fn] Keshavananda Bharti v. State of Kerala, (1973) 4 S.C.C. 225[/fn]
However, through the SMCH, the government is trying to cross and abuse the threshold which the Constitution grants it. The SMCH, without any safeguards in place, would be open to abuse not only by the government but also the private entity that is tasked with its management. There is no limit to which such an open system can penetrate into the life of an individual if the controlling agent is a hostile entity. Free and open targeting, profiling people are unfortunately a very real possibility with such a system in place. Such profiling can result in discrimination based on religion, ethnicity and caste; and this would be against the spirit of the constitution.[fn] Keshavananda Bharti v. State of Kerala, (1973) 4 S.C.C. 225[/fn] The tenets of our Constitution prohibit such discrimination by any authority much less the government.
5. Data Protection Laws for Big Data
Through the SMCH Bid Document, the Government aims and plans to create a technology platform to collect Digital media chatter from all core Social Media Platforms as well as digital platforms like news, blogs and forums along with a proprietary Mobile Insights platform in a single system providing real time insights, metrics and other valuable data. Specific capabilities of the tool, mentioned, include live search, monitoring, collecting, indexing and storage of personal data including location-based data and “meta-data”. By doing so, the Government will collect large amount of data in one place. The platform will be deployed in the private data centre and will need to integrate with the mobile platform database for a seamless view across all data platforms.[fn] Page 28, Request for Proposal bearing RFP Ref No: BECIL/Social Media/MIB/02/2018-19 dated 24.04.2018[/fn]. Therefore, the data to be collected is going to be in the possession and control of a private agency.
‘Informational privacy’ is an important aspect of the right to privacy that can be claimed against state and non-state actors. The right to informational privacy allows an individual to control and protect information about herself and prevent it from being disseminated.[fn] Justice K.S. Puttaswamy(Retd) v. Union Of India, (2017) 10 S.C.C. 1[/fn] However, what is worrisome about the SMCH, is that there is no framework/ system for the protection of this database. Collection of information about an individual using web crawlers to create a 360-degree-profile cannot be permitted since India does not have appropriate laws to handle such a project.
The importance of the need for a data protection framework has also been recognised by the Justice Srikrishna Committee and a draft bill and a report have also been published. Clearly, a new and comprehensive legislation will be needed to make specific rules pertaining to big data without which collection of data at such a large scale would be a very risky exercise. The Data Protection Framework, which provides for a comprehensive data protection regime for India is still under process and without the protection of the same, initiating the SMCH is untenable.
6. Alternate Means
There is no doubt that a SMCH would help analyze public opinion much better than any system India has previously seen but the fundamental question here is whether such an initiative is needed? There are various already existing ways by which the government can gauge public opinion such as polls, tweets, opinion pieces, publically available articles, interviews, state elections etc. Television debates, newspapers, radio shows also provide a taste of how people are perceiving schemes of the government.
Given the fact that every citizen has a fundamental right to privacy and complete freedom of speech and expression, the SMCH seems like a major infringement to the privacy of the people of the country and especially one which the government can do without.
7. Data Misuse
The SMCH Bid Document requires the vendor to not only create the software but also execute it through manpower deployment that extends beyond technical support to various functions of collection of data, analysis and publication. This is to be implemented by a team of Social Media Executives (SMEs) who are private persons employed by a third party service provider handling sensitive personal data of individuals including their 360 degree profiles who are to act under the guidance and directions of the Ministry of Information & Broadcasting.
To imagine the misuse of such a software which keeps a track of and monitors social media profiles of every internet user in India is unfathomable. Extortion, forced resignations, severe tampering of the democratic process, are just a few of the unimaginable ways in which such software system could be misused. Besides, the entire process would bring personal sensitive data of individuals in direct control of private players.
8. Misinformation and Propaganda
The stated intent, as per the SMCH Bid Document, is to try to influence social media conversations. This purpose is clearly set out in the RFP in the part titled as, “predictive analysis” as, “how could the public perception be moulded in positive manner for the country, how could nationalistic feelings be inculcated in the masses, how can the perception management of India be improved at the world, how could the media blitzkrieg of India’s adversaries can (sic) be predicted and replied/neutralized, how could the social media and internet news/discussions be given a positive slant for India.”
In the age when the severity of fake news has risen to such an extent that they have become the basis of lynching of people either due to their food preference or religion or other factors etc.; it is unfathomable that the control SMCH will give to the government to not only study its citizens to a micro-managerial granular level but tailor (fake?) news to something that will speak to them at either an individual or district level. Not forgetting that the government has also specified in this tender document a response analysis of each post in a certain area before it is even posted. This would indeed be the end of a democratic unbiased election as we know it.
9. Threat to Democracy
The SMCH Bid Document states that the software must “Measure the effectiveness of hashtag campaigns and compare the performance of brand campaign with competitors by ingesting relevant keywords” and the Social Media Command Centre should provide real-time monitoring of competitors. If the platform was intended to be used only by the MIB solely for the purpose of monitoring social welfare schemes, the question of competitors would not arise.
The social media analytical tool would ‘listen’ to conversations on all major digital channels. More significantly, it would also be able to monitor email. The SMCH Bid Document lists “Monitoring individual social media user/account’ as one of the requirements of the project which can very easily be misused to analyze, spot and possibly target user’s behavior and sentiment and subsequently target individuals who criticise the policies and methods of the government.
The SMCH Bid Document also requires capabilities to “mould public perception” in a “positive manner” for the country and inculcate “nationalistic sentiments”, as well as counter the “media blitzkrieg” of India’s adversaries. An automated system that analyzes unfathomable amounts of data on an everyday basis to further the propaganda of the existing government will result in the termination of democracy.
10. No Adjudicating Authority
Currently, no specific or specialized authority is tasked with issues which arise from the Information Technology Act, 2000. The Cyber Appellate Tribunal, India’s only specialized body to adjudicate cyber law matters has been defunct since 2011[fn] https://www.hindustantimes.com/india/india-s-only-cyber-appellate-tribunal-defunct-since-2011/story-208HGrEN7hXrABg7lAb69N.html[/fn] and in the absence of an express body to check the scope, use and misuse of such a database strictly, there is no doubt that this SMCH could be misused against anyone either by way of opinion manipulation, restriction of free speech and expression, leaking a person’s personal details so collected with the victim having no specialized body for redressal.
Without an express need and weighing the SMCH against the Puttaswamy judgement combined with the lack of appropriate legislation and lack of a redressal mechanism, coupled with the possibility of grave misuse, the SMCH was a privacy nightmare and has been rightly withdrawn. Polls, tweets, opinion pieces, publicly available articles, interviews, state elections, among other things. should be enough of an understanding exercise for the government to understand the mood of the people lest an initiative to promote better democracy becomes the end of it.